A friend from IPOPhil gently nudged me while we were attending a meeting on traditional knowledge digital library around two weeks ago that perhaps I may be interested in commenting on a draft guidelines on traditional knowledge (TK) protection that his office has come up with and this coincided with some messages from friends that indeed there is this on-going consultation on these draft guidelines to which I told them, this matter is of priority concern to indigenous peoples themselves they should be the ones who should be upfront commenting on these issues.

As a long-time observer on policy on TK in the Philippines since my time in the Philippine Senate back when the country was debating whether we should accede to the WTO Agreement and we were then scrutinizing what sui generis meant in the TRIPS Agreement, having also worked with various governmental and non-governmental organizations dealing with these issues locally, nationally and internationally and now also currently engaged, through BITS Policy Center’s work with Passionist Center- Justice, Peace and Integrity of Creation, Inc. (PC-JPIC) on strengthening the customary laws of indigenous peoples at least in SOCSARGEN, the following are, I would say, reminders, based only actually on existing laws on these items, so that these guidelines may not go beyond these laws. Of course, the indigenous peoples themselves should make their views known on this draft guidelines, for consideration by the two offices.

1. IPOPHil doesn’t have the legal mandate to deal with anything at all related to the traditional knowledge (TK) or indigenous knowledge systems and practices (IKSP) of indigenous peoples in the Philippines.

If one goes through the text of Republic Act 8293, or the Intellectual Property Code of the Philippines, nowhere is there stated that TK or IKSP is within the authority of the Intellectual Property Office. There is however a curious sub-paragraph in sec. 22.4 of the Code, dealing with non-patentable inventions and it reads:

“Provisions under this subsection shall not preclude Congress to consider the enactment of a law providing sui generis protection of plant varieties and animal breeds and a system of community intellectual rights protection.”

While this can be pointed to as indicating that somehow the IP Code has dealt with the issue of TK or IKSP protection by way of making them a non-patentable subject matter that may be further detailed or qualified in any manual on patent examination that IPOPhil may develop to guide its patent examiners, the provision can be read to mean that even as these matters are non-patentable subject matter, it is for Congress, that is, our Philippine Congress, that will deal with this item by passing a law to deal with the sui generis protection of 3 subject matters – plant varieties, animal breeds as well as a system of community intellectual rights protection.

Fast forward to today, 2015, we can see that this sui generis law on plant varieties is now the Republic Act 9168, or the Plant Variety Protection Act, there is no law dealing with animal breeds yet while that one on community intellectual rights protection is what is found in sec. 32 of Indigenous Peoples Rights Act or IPRA (Republic Act 8371)

Why this kind of interpretation? This is borne by the legislative history of this sec. 22.4 provision. Originally, there was a full chapter dealing with sui generis protection that was proposed to be inserted by Sen. Orlando S. Mercado to the then draft IP Code the principal author of which was Sen. Raul Roco but the compromise arrived at is this provision that we have, now sec. 22.4 of the IP Code. When the compromise version that became sec. 22.4 was approved, there was also pending at around that time the bill for indigenous peoples’ rights and the staff of Sen. Flavier, the principal author of IPRA, worked to incorporate the ideas on sui generis protection which later became sec. 32 of IPRA. Of course, there was a bigger framework for TK protection in IPRA, the chapter on cultural integrity, chapter VI, from which further principles may be derived for use in this guidelines.

In a way, if one goes through the whereases clause of this draft guidelines and its key provisions, the IPOPhil is aware of this limitation; in fact, that the guidelines is being issued jointly with NCIP is acknowledgment of such lack of authority by IPOPhil over the subject matter.

2. Community intellectual rights is not the same as intellectual property rights; community intellectual rights is also different from the right to IKSPs

While the IPOPhil might be commended for exerting this utmost effort to have something to say as regards the protection of TK or IKSP, the way it has proceeded by providing for rule 5, detailing what is this thing called Right to IKSP, goes beyond its legal mandate, and is a mangling or the improper commingling of what is in sec. 32 and 34 of the Indigenous Peoples’ Rights Act.

First things first. What the indigenous peoples have, as provided for in sec. 32 of IPRA is community intellectual rights, and what was obviously omitted there is the notion of the word “property”, to distinguish the concept from intellectual property right. Of course, it may be argued that the “community intellectual right” is in essence also “property” in the sense that it is susceptible to being owned by a right-holding entity or a person; nonetheless, in terms of concept and terminology, a community intellectual right is a distinct concept from intellectual property right. Built into the notion of community intellectual right is the notion that this right is collective and that this right is a different concept from what is usually understood as intellectual property right.

Several consequences arise from this distinction : one, community intellectual rights arise from the community themselves, it is not something granted by the State, like intellectual property rights; second, community intellectual rights are not time-bound, while intellectual property rights, by their nature, are time-limited, depending on what kind of intellectual property they are, they will have differing time-frames (20 years for patents and plant variety protection certificates, though sometimes it is 25 years for trees and vines, lifetime of author plus 50 years for copyright, 10 years renewable for trademarks), but the ultimate essence of these intellectual property rights is that they expire, for they pass on to what is called the public domain, not your usual concept on land rights which are lands owned by the state, but one whereby any material therein is susceptible of being used or appropriated by anyone for us in further creating any creative work, this public domain we are dealing with here is a copyright law concept.

Now, on the point that community intellectual rights is different from right to IKSP – the IPRA law already took care of that distinction, as they are stated in secs. 32 and 34 respectively; rule 5 of the draft guidelines should not have confused them further, like the following :

a) That the IKSP of indigenous peoples are their collective intellectual property and are an inherent part of their cultural patrimony – nowhere do secs. 32 and 34 of IPRA explicitly mention these concepts, so they should not be mentioned also as such;

b) That individuals or specific families may serve as custodians …– again, this concept is nowhere found in secs. 32 and 34 of IPRA;

c) That indigenous peoples have the right to regulate access of their IKSPs for research and documentation – the matter dealing with access is in sec. 35 of IPRA; again this confuses sec. 35 with what’s in secs. 32 and 34;

d) That indigenous peoples have the right to own, control, develop and protect the past, present and future manifestations of their cultures xxx.. – again, this provision is a dazzling commingling of what’s in secs. 32, 34 of IPRA

The best thing that can be done is to delete this Rule 5 so that it will not cause confusion on the prospective applicants and also the agencies concerned. If the IPOPhil may want to develop further implementing rules on sec. 32 and 34, such is best left to NCIP, which has the legal mandate to deal with the subject matter, which may also look at other provisions in Chapter VI of IPRA, on cultural integrity , to fully develop a comprehensive framework which in a sense deals with how the cultural heritage of indigenous peoples are not only protected, but revitalized.

3. While IPOPhil has rightfully focused on intellectual property rights applications and has properly laid down disclosure requirements for intellectual property applications, it should be mindful however of the consequences once these intellectual property rights expire

What the IPOPhil has gotten right in the guidelines is the focus on intellectual property rights applications but it could have detailed further the specific flexibilities it will be providing indigenous peoples on a specific category of intellectual property right, such as patent, plant variety protection, copyright, trademark, etc.

It is also good that the guidelines has provided for some disclosure requirements in these intellectual property rights applications. The more important question however is, what happens to these intellectual property rights once they expire, do they revert to the public domain, and if so, many years further down the road, how may the community intellectual rights or the rights to IKSPs of indigenous peoples interplay with those expired rights? Perhaps the NCIP should make it clear that they are not divested of their authority to help deal with these concerns in the future, as community intellectual rights and rights to IKSPs don’t expire.

One other matter that the NCIP can also help is when misappropriation is established by the lack of disclosure and the IPOPhil cancels the intellectual property right application. When should the NCIP step in, only after cancellation, or is there a way these two agencies may help each other in this aspect of protection at the stage of the disclosure process or even before that?

4. While TK registries are the thing among government agencies these days, it is not clear whether such is the notion of “special measures” contemplated by IPRA

As earlier mentioned, there was, around two weeks ago, in the office of the Philippine Institute for Traditional and Alternative Health Care (PITAHC), a government corporation that deals with traditional and alternative health care matters, an attached agency of the Department of Health under Republic Act 8423, a discussion of their proposed Traditional Knowledge Digital Library (TKDL), a supposed repository of knowledge of herbal medicine of all Filipinos, including the non-indigenous ones (curious question asked there was, do these non-indigenous peoples have rights that they can claim similar to indigenous peoples under IPRA? Short answer : none). Most likely, this TKDL is similar to what is being developed by the Philippine Council on Health Research and Development (PCHRD) of the Department of Science and Technology if not they are one and the same thing, as there is also one, as reported by UP Manila before the Sub-Committee on Biodiversity of the Philippine Council on Sustainable Development many years back, most likely UP Manila’s TKDL is one and the same thing.

Now here comes in the draft guidelines this Registry of IKSP, most likely this registry is NOT the same thing as the TKDL of the agencies previously mentioned. If this is so, then this is another aggregation of material which, even if they may have the free and prior informed consent of the affected indigenous peoples, would only serve to further commoditize traditional knowledge.

Of course, the IPOPhil in helping track the misappropriation of TK or IKSP, has to have some database on which to rely upon especially when confronted with unwanted intellectual property rights applications, but there are other ways this can be done. The Board of PITAHC has passed in the IRR of the Traditional and Alternative Medicine Act (TAMA) a procedure on how to deal with various claims of sui generis rights of various communities, perhaps something similar can be arrived at here.

There are other fundamental concerns that must be dealt with when coming up with these databases or registries and while this list is non-exhaustive, they are : who owns the information lodged in the registries; if a researcher incorporates such information in his/her work, does the researcher also get to own the information and the result of the research? Then, what happens to TK or IKSP that is not placed in the registry or databases, do they become open for everyone’s taking as they cannot be protected; and how do we run after the past activities of biopiracy or misappropriation, surely the database will only have a prospective effect; how do we deal with the cultural privacy of indigenous peoples – most likely there are further items of information that the indigenous peoples themselves don’t want to disclose, so if they are not part of the registry, does it mean they can no longer be protected?

All these questions would show that there are more concerns that will need special measures as contemplated by sec. 34 of IPRA; even sec. 32 of IPRA talks about the right to restitution of cultural, intellectual, religious and spiritual property taken without the free and prior informed consent of indigenous peoples, a simple registry does not begin to even address these concerns.

5. There are other agencies that also deal with TK, they should be able to have a say in matters relating to TK protection that may be considered in the draft guidelines

Given the breadth and scope of TK or IKSP as a subject matter, there are indeed other agencies with legal mandates on this, like the National Commission on Culture and the Arts under Republic Act 10066; the Philippine Institute for Traditional and Alternative Health Care under Republic Act 8423; the Biodiversity Management Bureau under the Wildlife Act or Republic Act 9147, especially in the matter of disclosure when the item concerning the existence of an agreement for fair and equitable sharing of benefits from the utilization of TK or IKSP is also a feasible item that can be added for disclosure in the intellectual property rights application, the National Museum under its legal mandates as refined in Republic Act 10066 and also the local government units, and what do we do with scientists and researchers, some of whom may be non-indigenous, where do they fit in amidst all these provisions of the guidelines?

Finally, the indigenous peoples themselves should have a say in how these guidelines should be written and eventually evolve, including also the emerging practice of indigenous peoples who may have established their customary laws and even customary law declarations as regards these matters and some may have also taken this up under their so-called ADSDPPs (Ancestral Domain Sustainable Development Protection Plan), these should also be taken into account when dealing with the matter of protection of these TKs and IKSPs of indigenous peoples.

Eventually, when all the possible roles of these agencies and the communities are spelled out, it may result in a more effective mechanism for the protection of the IKSPs of indigenous peoples, not limited to these draft guidelines, taking into account the unique features of Philippine law on the subject and the distinct history of why these measures turned out that way.